Downtown Art Co. v. Zimmerman

Full title: DOWNTOWN ART CO., Respondent, v. CATHERINE ZIMMERMAN, Appellant

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: May 14, 1996

227 A.D.2d 226 (N.Y. App. Div. 1996)

642 N.Y.S.2d 259

Opinion

May 14, 1996

Appeal from the Supreme Court, New York County (Herman Cahn, J.).

Aside from its contract claims, the main relief plaintiff seeks is an injunction against defendant's continuing her use of the Soho Booking name and logo. Defendant initially asserted a counterclaim for similar relief as against plaintiff, but withdrew it without prejudice. The IAS Court correctly held that "the primary character of the case" is equitable ( Cadwalader Wickersham Taft v. Spinale, 177 A.D.2d 315, 316), as neither party would obtain full and complete relief by a judgment for a sum of money ( Murphy v. American Home Prods. Corp., 136 A.D.2d 229, 232). Defendant's withdrawal without prejudice of her equitable claim neither changed the character of the action nor revived any right she may have had for trial by jury ( Zimmer-Masiello, Inc. v. Zimmer, Inc., 164 A.D.2d 845, 846-847).

Concur — Wallach, J.P., Ross, Williams and Mazzarelli, JJ.